Sixty years ago this week, the Supreme Court handed down its epoch-making decision in Brown v. Board of Education. The aftermath of Brown changed a great deal, from the role of the Court in our constitutional and political order to the national attitude toward civil rights and the very foundations of our political discourse.
It didn’t much change education.
To my knowledge it has never been seriously argued — the argument certainly was not made by the Supreme Court — that the authors of the Fourteenth Amendment intended to alter the Constitutional scheme with regard to education. Indeed, in the famous school integration decision, Brown v. Board of Education (1954), the Supreme Court justices expressly acknowledged that they were not being guided by the intentions of the amendment’s authors. “In approaching this problem,” Chief Justice Warren said “we cannot turn the clock back to 1868 when the amendment was adopted. . . . We must consider public education in the light of its full development and in its present place in American life throughout the nation.” In effect, the Court said that what matters is not the ideas of the men who wrote the Constitution, but the Court’s ideas. It was only by engrafting its own views onto the established law of the land that the Court was able to reach the decision it did.
That was the view of most of the editors of National Review at the time, although the remarkable discovery I made — remarkable to me, at least — in my recent course of reading this magazine from its first issue through the middle 1960s is how relatively little we had to say about those questions. Brown is remarked upon, and so is the Civil Rights Act of 1964, but compared with issues such as Communism and the Vietnam War, they occupy very little space, and they are considered mainly, though not exclusively, in legal terms. Those terms are of course important, and conservatives who are instinctively inclined to agree with Senator Goldwater would do well to consider the contrary opinion of Robert Bork, whose views on such matters are not to be discounted lightly:
The Court’s realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.
Justice Clarence Thomas, noting that Brown was roundly criticized for its reliance upon sociological and psychological theory, comes to a similarly straightforward conclusion. The Court, he writes, “did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens on the basis of race.”
Conservatives, at the time, were torn between their desire that government should make no distinctions between the races and their antagonism toward judicial imperialism. Conservatives, then as now, also were deeply influenced by their belief that the law could only do so much to remake social realities. The Republican party has a remarkably consistent belief, from the Lincoln era through the present day, that the main drivers of salubrious social change must be free enterprise and economic self-improvement. It is for that reason that Senator Robert Taft of Ohio — “Mr. Republican,” the Senate’s leading conservative — floated a largely forgotten proposal in 1946 that would have been the most sweeping civil-rights reform since the Reconstruction amendments, focusing mainly on the problem of employment discrimination. David Freeman Engstrom revisited that episode in a 2006 article and documented that the Taft bill, unlike many similar earlier offerings, contained very strong enforcement mechanisms, giving it real teeth, up to and including the implementation of hiring quotas. The Taft measure won the support of the noted black labor leader A. Philip Randolph, but was rejected by the NAACP and the AFL, the latter in part very probably because, as Mr. Engstrom notes, the Taft plan would have “exposed union locals to regulation.”
The post-Reconstruction Republican party believed at its core that the South was backward because it was poor, rather than poor because it was backward, and this line of thinking was implicitly and sometimes explicitly extended to African Americans throughout the country, as it is today. The theory was that incremental social change, driven largely by improvements in economic conditions, would accomplish what mere de jure equality could not. James Burnham, writing on the tenth anniversary of Brown in the June 2, 1964, edition of National Review, sharply criticized Brown and the Court, partly for the attempt to superimpose the justices’ idealism over state and local law, as well as what he called “natural” processes, but because the post-Brown regime failed to deliver: “The verdict pronounced by the facts leaps to the eye, and is implicit even in the many tenth-anniversary recapitulations published in the journals that rate Brown alongside the Ten Commandments and the Declaration of Independence. Brown is an abysmal failure, strictly on its own terms.” Mr. Burnham’s next paragraph could be published today with only a slight revision of the numbers:
The rate of school integration — the specific problem dealt with in Brown — has been no more rapid in this decade since 1954 than in the decade before 1954, when, without benefit of the Court, it was progressing slowly but continuously under the influence of economic change, social pressures, shifts in community sentiment, and the state of local law. Today, after a decade of Brown, 91 per cent of Negro students in the Southern and Border states still attend segregated schools. . . . In the Northern cities, the widespread de facto school segregation, resulting from residential patterns, has not been significantly changed.
Mr. Burnham’s observations in 1964 are not radically different from those of Eleanor Barkhorn writing in The Atlantic just last year. She notes that in 1969, after the Department of Education had begun robust enforcement of Brown, 77 percent of black and 55 percent of Hispanic students attended schools that were predominantly minority, whereas in 2010 the numbers had hardly budged for blacks (74 percent) and moved in the direction of more segregation for Hispanics (80 percent). And in 2010, she reports, more than 40 percent of minority students attended schools that were almost exclusively (90–100 percent) nonwhite.
It is for that reason that the constitutional debate, important as it may be, seems to me sterile.
Those Taft Republicans were in many, perhaps most, ways correct about the relationship between economic progress and broader social progress. Until after World War II, the South was desperately poor compared with the rest of the country, with incomes on average one-third those in the Northeast. The post-war economic boom was the main factor in changing that — no law, no public policy, no federal program was nearly as significant. For all the talk about economic inequality, sustained, robust growth and economic innovation can incrementally but radically change our quality of life. A middle-income American in the Northeast 100 years ago was much better off than a middle-income Southerner, but both were very poor by our standards. The difference between them was nowhere near so great in real terms as the difference between them and us.
African Americans have been as well served by economic innovation and growth as anybody — probably more so. There is no performance gap in, say, the car that a black family living in a largely black neighborhood in a largely black city can buy compared with what a white family in a white neighborhood in a white city can buy. A black family with $25,000 to spend has the same choices as a white family with $25,000 to spend. A black family that can afford a Mercedes has the same choices as a white family that can afford a Mercedes. The same is true for most products.
It is not true for education, the most important product that is still delivered on a Soviet central-planning model rather than through markets. A middle-class black family living in a largely black neighborhood is likely to be served by relatively inferior public schools. Across income groups, blacks are less well-served by the monopoly education system than whites are. That is not so much a product of the fact that African Americans are relatively poor, though they are, as of the fact that they reside in relatively poor communities. There are many young people in families of very modest means who benefit from going to schools in communities populated by people who are much better off than they. (I was one of those.) But that benefit is, statistically speaking, less available to black families. And as a practical matter, it is almost certain to remain so as long as K–12 education is dominated by model in which ZIP code is destiny.
Brown was and is important as a statement of principle, but law has a limited ability to change the facts on the ground. Free markets, on the other hand, remake the physical world anew with revolutionary speed. One of the footnotes to the Brown decision considers possible remedies, one of which — “Negro children should forthwith be admitted to schools of their choice” — suggests what is still an excellent policy option, though one that should be applied universally rather than restricted to black students. The relative lack of black educational progress in the post-Brown era highlights not only the deficiencies of the politically dominated model of economic production — and education is an economic good — but draws attention to the critical distinction between government funding of services and government provision of services. Food stamps have not interfered with innovation in the growing, distribution, preservation, or retailing of food, because government does not attempt to operate farms, food-distribution networks, or grocery stores. It does operate schools, with consequences that have been disastrous generally but especially for African Americans. Even accounting for the income disparity between blacks and whites, the groceries, clothes, housing, electronics, automobiles, and other normal market goods is radically better for black Americans today than it was 30 years ago, to say nothing of 60 years ago. The same cannot be said of schools.
We may celebrate the sentiment behind Brown, but it would be far better to take meaningful steps to make the aspirations of 1954 into a reality sometime before 2054. When the politicians make their sentimental speeches about how far we’ve come since then, ask them where they stand on school choice, consumer-driven education, and other reforms. And then ask yourself which party is still living in 1954.
— Kevin D. Williamson is roving correspondent for National Review.